Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 206-1942.

There is an abundance of high profile criminal cases pending in various courts. A number of these cases feature sports figures in the role of “The Defendant”. However, no, this is not that Michael Jordan.

This Michael Jordan is a 27-year-old Boston gent (hereinafter, the “Defendant”) who has been charged with gunning down another man in the shadow of one of Boston's most famous houses of worship, Trinity Church in the Copley Square area.

He has been ordered held without bail..

He was arraigned and has pleaded “not guilty” to first-degree murder and other charges. The allegations date back to August 2013 when he is alleged to have shot and killed 22-year-old Ahmir Lee.

Grand juries meet in private… Except for the prosecution of course. No judge, no defense attorney and no defendant. I would imagine you could almost quote by heart at this point the saying that "a prosecutor could indict a ham sandwich".

Different jurisdictions have different procedures which take place after there is an indictment to be sure that there was a legal basis for the indictment. In Massachusetts, grand jury minutes are given to defense counsel as early as possible so that the minutes can be reviewed. This is actually different from some other jurisdictions where the grand jury minutes are only given to the defense just before trial.

Incidentally, it is the prosecutor who tells the grand jury the law for the grand jury is to consider when considering an indictment. The minutes of that instruction, called "the charge", are not routinely given to the defense.

In any event, an experienced criminal defense attorney knows how important the grand jury minutes are. There are a number of problems which could exist in the grand jury presentation which could lead to the dismissal of the indictment and the underlying charges.

An example of this just played out last week. A Hampshire Superior Court judge dismissed larceny charges against Nancy Whitley (hereinafter, the "defendant"), ruling that the prosecution had failed to provide a police interview recording of the Defendant to the grand jury that indicted her.

Jaime Fuentes ,48, is/was a prison guard at the infamous maximum security state prison,Souza-Baranowski Correctional Center in Shirley. As of Wednesday, he is the "Defendant". He was living in Worcester. Now he in custody, held without bail.

Of course, if what the Commonwealth says about him is true, he now has more to talk about with his former prisoners.

Monday he is scheduled to have his very own Dangerous Hearing.

Prosecutors say that the Defendant threatened his live-in girlfriend during an argument Tuesday in which he accused her of being unfaithful. He was allegedly Holding a gun to her head and threatening to kill her at the time.

Law enforcement claims to have seized a gun from the home and another from the Defendant's vehicle.

Not guilty pleas were entered on behalf of the Defendant at his arraignment Wednesday on charges which include assault with intent to murder.

A lawyer for the Defendant says he "absolutely denies the allegations" and says that he was the victim.

Any time you press a deadly weapon to someone's head, particularly if you threaten to commit a crime (like homicide, for instance) it is a serious situation.

Of course, as you can imagine, there are other aspects of this case that make it even more serious. First of all, it appears to be a domestic incident. Therefore, the red flag of "domestic violence" enters the scene. The only change that that makes is that it is handled with even more caution and fear of the media should the system seem to pay too much attention to the presumption of innocence.

Another aggravating factor is what the Defendant does for a living. The fact that he does it at what is supposed to be the most secure, and is known as the most dangerous, security facility in the Commonwealth cannot help matters either.

These are some of the factors which may have had a part in changing what appears to be a case in which otherwise chargers for "threats to commit a crime" and "assault and battery with a dangerous weapon" would be the charges.

"What do you mean, Sam? The guy is said to have threatened to kill her."

Yes he is and he, who remains allegedly presumed innocent, says that he didn't do it and is, in fact, the victim. Not that we are going to take his word for anything, of course. That's what trials of for.

I realize that we are dealing with a limited amount of facts in this matter, but there is nothing to indicate an actual assault to commit murder.

We have discussed what an "assault and battery" is before. Basically, the "assault" is putting the person in fear of an upcoming battery. A "battery" is in offensive touching. People usually envision this as a punch or a kick. It does not have to be that. Therefore, if the defendant was just holding or touching his girlfriend in inoffensive way (offensive to her), it would meet the criteria of a battery.

In this case, he is alleged to have done this with a gun. It should surprise nobody that a gun is considered a deadly weapon. Therefore, you have the allegations of "assault and battery with a dangerous weapon".

Threatening to commit a crime is just what it sounds like. Certainly, "I am going to kill you" qualifies as a threat to commit a crime.

But "assault and battery with intent to murder"?. Not so much, I would argue.

If the Defendant was choking her, or doing something else which indicated an actual attempt to kill her, then that might justify the charge. Even if he said, "I am holding you here because a deadly gas is coming through the pipes and will kill you here", it would make sense.

In fact, we do not even know if the gun was loaded. Of course, he did not threaten he was going to shooter, so I suppose one could say that he was about to use the gun to "pistol whip" her.

"So are you saying that they may have overcharged him?"

That is done routinely. In this case, there is even more incentive to do it because of the factors I indicated above. The tougher the Commonwealth can look, the better it is for the Commonwealth.

"But won't a judge see that right away and dismiss the charges?"

I hear that type of question almost every day. The answer is no. The time when a judge will look at the charges and the allegations in consider dismissing the case are a good deal into the future. Even then, it is unlikely to happen. However, it is not going to happen in this case.

Not now, certainly.

However, if the allegations do not fit the charges, the prosecution will have to fix things before the matter guess to a trial. In this case, that is likely to happen when the case is indicted. Which I expect it will be. The indictment will come from a grand jury and will supersede the initial criminal complaint.

As discussed in my last blog, Paul Hinkel of Connecticut (hereinafter, the “Defendant”) has been convicted of traveling to Massachusetts with the intention of having sex with what he thought was a 15-year-old girl; the girl did not exist, but a federal agent did in her stead.

We have discussed the issue of age in the past. Sexual relations with a 15-year-old girl is another word for “rape”. A child cannot consent to sex. A 15-year-old girl is a child.

This was all the result of a federal sting operation which was planned by a federal law enforcement agency.

In this case, said agency was Homeland Security.

Attorney Sam's Take On The Many Faces Of Law Enforcement

The United States is said to be at war with terrorism. In the early days of that war, the Department of Homeland Security (hereinafter, the “Department”) was created. The Department was given great powers. They were even given special rules which only applied to them. Rules which impinged on peoples’ fundamental Constitutional rights.

This was explained because they were, after all, charged with the responsibility of keeping us safe. Primarily safe from the terrorists.

While there have been countless acts of terror around the globe, we have been relatively safe in recent years. At least…in terms of foreign powers. Most people would agree that the Department has done a pretty decent job.

Keeping the homeland safe…particularly from terrorists.

I do not know much about the Defendant’s background, but I have yet to hear anything tying him to either foreign powers or terrorists. Nor have I heard that such entities plan on attack the United States through sexual acts with minors.

Finally, I have seen and handled a great many other federal and state authorities who tend to spearhead such investigations and prosecutions.

In other words…what is the Department doing spearheading this investigation by posting advertisements and setting up sting operations?

“Well, what difference does it make, Sam? Law enforcement agencies often share resources and work together in investigations. What’s the big deal?”

The “big deal” is that the Department is not like other agencies. It has more power. It is easier for it to do things which, if some other agency did it, could be considered a violation of Constitutional rights. As I recall, they were given the Patriot Act not so long ago which threw open floodgates of private information and, for the sake of national security, made the information available which would otherwise necessitate a court order.

Sure. But the Department was not created and given special abilities to fight something that adversely effects the country.

The powers given to the Department were supposed to be exceptions to the rules purely because of what national security was seen as then.

“So, what’s the point here? Have you changed from ‘Attorney Sam’ to ‘Candidate Sam?’

Heaven forbid.

The purpose of this argument is to let you know who and what is out there watching…potentially for you.

“So, you are just trying to warn all the criminals, huh?”

I maintain that not everyone accused of a criminal act is a “criminal”. Mistakes are made. Routinely.

That is why “true believer” defense lawyers like me are important. And it is why the general population needs to understand the realities of law enforcement.

The fact is one never knows where a criminal investigation or, simply, an allegation will come from. That being the case, you cannot know what “facts” the investigators believe to be true when they come to approach you.

It is more important than ever not to try to out-wit, out-talk or out-race them.

It is a story we are hearing quite often these days. Someone is allegedly using the internet to lure an underage boy or girl into sexual activity. I don’t know how many adults are engaging in that practice successfully…but there are certainly a large number of such adults who are actually exchanging such messages with an undercover law enforcement officer.

Paul Hinkel, 57, of Chester, Connecticut and hereinafter the “Defendant” is one man who was convicted yesterday of such a crime.

The Defendant had come to Massachusetts for “love” with what he thought was a 15-year-old girl.

She wasn’t one.

Instead, when he ended up in Watertown last March, he found himself paired with a federal agent…who was, to be sure, of age. Apparently, the bag he had brought with him allegedly containing a stuffed animal, sexual paraphernalia and cologne, did not help him too much either.

The Defendant wound up in Boston’s Federal District Court, facing charges including using the Internet to lure a minor to engage in sex. In other words, rape.

Prosecutors say the Defendant drove to Watertown last March in response to a Craigslist ad in which a woman sought a man who might be interested in a relationship with her daughter. The ad was actually placed by Homeland Security agents. The “daughter” was a federal investigator.

The Defendant faces a minimum mandatory sentence of 10 years and the maximum of a life sentence in prison at sentencing in May.

Attorney Sam's Take On Prospective Defenses To Internet Sex Crime

“Sam, how can he be prosecuted for luring a child? He never even was in contact with a child!”

In some instances in criminal law, a try is as good as a success.

In this case, the government’s case was clearly that the Defendant had tried to lure a child and, in fact, took the affirmative steps to make that effort pay off (for example, coming to Massachusetts with his little goodie bag).

How was that argument fought against in this case? I don’t know. I was not there. I can certainly think of some arguments…but nobody asked me in this case.

“Sam, why wasn’t this entrapment?”

The defense of entrapment is a commonly misunderstood concept. In this case, while it was the government who put the advertisement in Craigslist and engaged the Defendant in the communications, it would be difficult for the Defendant to win at trial with such a defense.

First of all, keep in mind that the federal agent did not just show up at the Defendant’s door offering a young child up. They placed an advertisement. It was the Defendant who responded to the advertisement.

Now, you may want to argue that the advertisement was so well crafted so as to destroy an contrary will on the Defendant’s part to resist it so that the Defendant really got sucked into the government’s web almost against his will. However, in order to prevail on a claim of entrapment, the defense also has to show that, left alone, the Defendant would never have tried to engage an underage girl in sexual conduct.

Cases like this can be quite tricky. I can tell you that, more than with other types of criminal trials, jurors come in with pretty strong ideas of innocence and guilt. Particularly the former. These cases are emotional and jurors tend to feel badly for the idea of a young victim…even when the “victim” is not really so young at all.

… And, still they continue. Police-involved assaults, no matter which side starts them, generally end the same way.

Law enforcement wins.

Often, it is not even close.

Take the recent case of 29-year old Weymouth resident Stephanie Farley (hereinafter, the "Defendant") for example.

The Defendant was apparently visiting somebody at 111 Torrey Rd. in Manchester, New Hampshire a weekend Ago. Unfortunately, someone called the authorities to come out and investigate someone allegedly acting "disorderly". Officers allege that, when they got to the scene, they found the defendant standing outside of the residence.

Well, more than simply "standing". Police allege that she was acting hysterically and yelling profanities at no one in particular. Officers say they approached her, but that she was uncooperative.

Often that is enough for the situation to escalate.

In this case, the police investigated further and spoke to the resident of the home. He told them that answered the dallegedlygeot Dfendant had knocked, because she claimed she needed help. Once inside, he explained, the Defendant yelled something and immediately fled the house. That was when he contacted police.

The officers claim that when asked to refrain from acting disorderly, the Defendant responded by refusing to become calm and, instead, becoming combative. while being taken into custody, she refused to comply with the handcuffing procedure and allegedly kicked one officer in the leg, and spit on another officer.

Matters were not helped when the officers then found 7 methadone pills and 7 Gabapentin pills.

The Defendant was charged with two counts of simple assault, possession of a controlled drug, disorderly conduct, and resisting arrest/detention.

Attorney Sam's Take On Police Encounters

We have discussed very often what to do in an encounter with investigating officers.

Simply put, your best bet in not finding yourself behind bars in the near future is to act politely and courtiously. You want to keep the situation as calm as possible. This would be the opposite of trying to out run, out talk or outfight the officers. It takes very little to be charged with a crime like disorderly conduct.. It also does not take very much to find yourself charged with assault and battery. All it takes is an "offensive touching".

Now, many people do not like this reality. They feel that if a police officer is approaching them and bothering them, it is fair game to advise the officer, in no uncertain terms, that they have no right to do so.

People in this situation have a basic choice to make. Either they can push the appointive you, which, at that time will not lead to anything but an arrest, or, they can be somewhat compliant and maybe get to go home at the end of the day. Challenging the officers can be done at a later place and time with professional guidance.

you can tell by some of the cases mentioned in this blog and the one prior that there is often a reason that police officers aggressively make sure they are "in control of the situation" when they stop someone.. The fact is, they never know what to expect when approaching a scene or a suspect. As many recent cases have shown, violence often erupts

"But, Sam, why should the responsibility to keep the situation calm be on regular citizens instead of professional lot enforcement officers? You know that there are many times that officers approach with a huge attitude and often goad a person into non-cooperatiot "

Yes, unfortunately, I do. I have seen it. However, as described above, there is a choice to be made. You can either engage that officer, matching attitude for attitude, or you can dowhat is your best bet in leaving the confrontation without incident.

Perhaps one day the general population and the police population will find a way to approach each other without antagonism and fear.

Let’s turn to the end of December and look south for example. This time in Decatur, Georgia. The dead man is 44-year-old Kevin Davis.

His involvement with law enforcement occurred when…he called them seeking their protection.

Folks remember Davis as a kind and loving man. air kindness included inviting coworker Terrance Hilyard, who was going through a rough time, to stay with him and his girlfriend, April Edwards, in their small apartment.. She took him up on the offer. Things did not end well.

On December 29, 2014, there was an argument between Edwards and Hilyard. Apparently, the argument escalated to the point where Hilyard stabbed Edwards with a kitchen knife. When Hilyard then fled the home, Davis called 911. He and his wounded girlfriend retreated to the bedroom to await the police in safety.

There they waited.

Until Davis heard gunfire from the home's front room.

Fearing that Hilyard had returned with a gun to finish what she had started, Davis grabbed his own gun and went to the front room.

The shots fired were not from Hilyard. Nor had she returned. The shots were fired from the protectors whom Davis was desperately awaiting.

Police Officer Joseph Pitts, the first officer to arrive on the scene had fired those shots...into Davis'threelegged dog, Tooter.

And Davis was next.

As he entered the room, Davis was gunned down by Officer Pitts. Two shots. Officer Pitts claims that Davis was ordered to drop his weapon but did not comply soon enough.

On the streets, if not in the law, this can be a capital offense.

Interestingly, witnesses say that they never heard Officer Pitts announce himself. They also claim that there was no command for Davis to drop the gun until after the shots we fired.

Also unknown is what Tooter the crippled dog had to to earn his shooting.

Davis was then arrested, charged with aggravated assault of a police officer, and transferred to a hospital in police custody, where he would die two days later.

The family is reporting that they were not allowed to visit him as he languished and died, in custody,

Davis' protection of Edwards ended more successfully than the police department's protection of him. She was transported to emergency care, her wounds punctured an artery in her right arm, but she has since recovered

...But that's in Georgia. How are the streets treating law enforcement here in the Commonwealth?

Well, on Thursday morning in Bourne, it looks like a member of the United States Coast Guard actually set a deadly trap for police officers.

You see, police received a number of calls describing a car fire and explosions on Roundhouse Road at about 2:15 a.m. When officers arrived, they found a car engulfed in flames blocking the road, police said. At the same time, police got a 911 call from a woman saying she and another woman, both members of the coast guard, had been shot and that the male assailiant had fled the scene.

Apparently, he hadn't gone far though.

When the police arrived, 31-year-old United States Coast guardsman Adrian Loya, of Chesapeake, Virginia, is said to have shot atthe officers, hitting one of them in the back, below his bullrt proof vest.

Loya was subdued, alive, and charged a number of criminal charges including the ambush of the officers and the shooting of the women. The police say that the shooting was the result of a home invasion gone deadly. In fact, one of the two women died at the scene.

the wounded officer and surviving shooting victim were rushed to a Rhode Island hospital and treated.

Attorney Sam's Take On The Sad Reality Of Police Shootings (Both Ways)

My experience with police shootings began when I was an assistant district attorney in Brooklyn, New York. Clearly, the problem has not gone away and is not limited to any one state.

"But, Sam, these are two stories and only one has to do with a police officer shooting someone."

True. But in order to understand and protect your self from the reality of police shootings, it is important to understand stories like the one on Cape Cod.

A number of high profile matters are seeing action in the Commonwealth at the moment. One of them is a trial in Fall River. It is the murder trial of former new England Patriots player Aaron Hernandez. This trial concerns murder allegations that Hernandez killed Odin Lloyd.

This morning, the taking of evidence in the trial itself was paused because of another type of hearing was taking place. It involved the questioning and then removal of one of the jurors.

Bristol County Superior Court Judge Susan Garsh, the trial judge, questioned the juror outside the hearing of the public assembled in the courtroom.

At first, there was speculation that the issue had to do with the Super Bowl which took place on Sunday. As this was the first day back since the game (Monday court was cancelled because of the weather), folks wondered if the juror had broken the judge’s admonition regarding the game.

The judge had told jurors they were allowed to watch the game but had to leave the room or distance themselves if Hernandez's name came up.

While the actual details have not yet been revealed, we do know that the juror was removed from the jury panel.

After a closed-door hearing that lasted more than 90 minutes, Judge Garsh said that there was credible evidence that the juror had specifically discussed an opinion about the case, including that it would be hard to convict Hernandez without the murder weapon, which has never been found. She said the juror also discussed several items of evidence that the court has ruled are inadmissible in this case.

"Over the last few years, the juror has expressed an interest in serving on this particular jury," the court said. "There is credible evidence that the juror has attended more Patriots games than were disclosed on the questionnaire."

"Discharge of the juror is indeed in the best interest of justice," Judge Garsh said.

It wasn't immediately clear how the juror issue came to light. When the 17 remaining members of the jury came back, they were informed that one juror had been dismissed for "purely personal reasons" unrelated to the case.

Hernandez faces life imprisonment if convicted of killing Lloyd. There are also other murder charges pending against him.

Attorney Sam's Take On The Issue Of Jurors

“ ‘Leave the room if Hernandez’ name is mentioned’? How is that supposed to work?”

The problem is that the issue of keeping a juror fair and impartial is not a simple one. In some cases, jurors are kept sequestered for the duration of either their deliberation or the entire trial itself. It would seem to be the only way to prevent outside influences from effecting the juror.

Great pains are taken in jury trials to control what information is presented to jurors. It is generally the reason for all those delays which frustrate jurors while the attorneys and the judge discuss evidentiary issues up at the bench. The fact is, though, that jurors are seldom if ever given all the facts of a given case. There is a great deal of cases and statutes which determine that certain things would be unduly prejudicial for the jury to know.

When, as in this case, a juror is found to have been dishonest with the court in her previous answers to questions, it is usually a hint that this juror cannot be trusted to follow the court's instructions during the trial.

But that is in the courtroom.

We are living in a world where information is everywhere. Sometimes it is reliable; sometimes it is not reliable. Either way, it might be something that could influence a juror.

“Can you really shield a juror from all of life’s information?”

Not really, but we try. Believe it or not, the jurors themselves usually try. In my experience, jurors actually take what judges tell them seriously. So, the idea of leaving the room if Hernandez’ name is mentioned may seem odd to you, but I’ll bet that the jurors followed the instruction.

If you are going to be a party in a jury trial, you had best understand this concern regarding the jury.

The jurors will decide the fate of a defendant. Contrary to what you have been told, they do not make these decisions based upon either evidence or the law as the judge gives it to them.

My experience tells me that jurors make their decisions based upon their perceptions of the evidence and the law as the judge gives it to them. This includes their feelings and thoughts at the time they heard the evidence or the law. This is critical to recognize if you want to have your best shot with a jury.

This is why I tell my clients that everything they do, say or look in the courthouse is an argument to that jury. While listening to evidence, you can be sure that the jury is looking over at the defendant to watch his or her reaction. Does the defendant look sleazy? Confident? Guilty?

That’s right. It is also why you want to have an experienced trial attorney representing you. Someone who understands a jury. Someone who is used to being in front of the jury.

While the rest of us have been battling with snow, wagers on the Super Bowl and the like, Springfield’s law enforcement has been continuing its battle against Massachusetts drug crimes.

It has been relatively lucrative too. In Springfield, police recently confiscated over $22,000 in cash and over 2,000 bags heroin after arresting two local gentlemen.

Springfield Police Sgt. John Delaney announced that narcotics detectives had been conducting a criminal investigation into two alleged heroin dealers “who were responsible for distributing thousands and thousands of bags of heroin every week” across the area. Finally, toward the end of January, surveillance was set-up on one of the targets, identified as 49-year-old George Delgado (Hereinafter, "Target1") of Springfield.

According to Delaney, detectives saw Target1 leave a residence on St. James Avenue and travel to a suspected ‘safe house’ on Westminster Street. He was then observed with 46-year-old Samuel Velez (hereinafter, "Target 2") of Springfield. The two allegedly got into a vehicle and left Westminster Street.

The vehicle was pulled over a short time later at Catherine and McKnight Streets. Delaney says that as the detectives approached the car, they saw that Target1 was the passenger and that he threw a bag into the rear seat. Target2 is said to have been driving Target1’s car.

Both men were placed under arrest, and police seized 1,000 bags of heroin from the vehicle.

Next, the detectives raided the Westminster Street home and reportedly seized an additional 1,387 bags of heroin stamped ‘Lucky Charms’, three semi-automatic handguns, 70 rounds of ammunition, $22,565 in cash, and drug paraphernalia.

Target1 now faces charges for trafficking in heroin (36-100 grams), violation of a drug-free school zone, and operating under suspension. Target2 faces various charges including possession of a large capacity firearm in the commission of a felony, possession of a high-capacity feeding device, improper storage of a firearm, trafficking in heroin (36-100 grams), violation of a drug-free school zone,

Delaney maintains that “Crime statistics in Springfield have been dropping and the war on Heroin is ongoing and being won, one arrest at a time”.

Attorney Sam's Take On Search, Seizure, Drugs And Guns

Unlike other cases which we have recently discussed, there is no claim that Targets 1&2 were simply pulled over by chance and, thereafter, found to possess drugs. This arrest was clearly the result of an ongoing investigation. That is why there was surveillance set up in the first place.

I have handled many drug cases like this, both on the side of the prosecution (in Brooklyn, New York) and the defense (here in the Commonwealth). The primary issues in this case will be those having to do with search and seizure. In other words, the question will be whether or not law enforcement seized the drugs and guns legally.

“So…given the facts…did they?”

Well, it is actually impossible to tell from the scant amount of facts thus far released to the public. In fact, such facts often provide shrouds of secrecy for the defense.

“Why? I thought the prosecution had to give the information to the defense as part of ‘discovery’.”

Yes, but the government (state or federal) often argues that to release certain information would be to sacrifice ongoing investigations and even endanger others involved in said investigations.

In such cases, the court must balance the rights of the criminal defendant against the rights of the prosecution.

For example, if I were counsel for either defendant, one of the first things I would want to do is discover all that the investigation revealed about my client as well as anything that would tend to lessen his involvement in the ongoing alleged conspiracy. I would be entitled to much of that by right because, at the very least, it was probably part of the probable cause the detectives will claim for stopping the car and making the arrests.

Interestingly, much of the investigation might be relevant for a motion to suppress, but not for trial. The Commonwealth usually starts the fact scenario in the trial at the point of observing the targets on the day of the arrest.

“But if you find helpful in the background investigation, can’t YOU decide to introduce it at the trial?”

Sure. But one has to be careful. Sometimes when the defense introduces additional facts, it is found to have “opened the” door to the Commonwealth to introduce additional inculpatory evidence which it might otherwise not be able to.

“So the defense has to stay with the scenario that the Commonwealth decides to paint?”

Not at all. Defense counsel does, however, need to be very careful and plan for various possibilities when preparing for trial.

Of course, as I mentioned, there is a long road between now and this matter getting to trial (if it does get to trial). The primary focus of the defense at this point should be in trying to suppress the items seized.

If that is successful, and the Commonwealth cannot use the drugs and guns seized, then the case gets dismissed.

Issues concerning discovery, suppression and, especially, trial strategy can be complex and sometimes even counter-intuitive to the novice eye. That is why I recommend doing what you can to have experienced defense counsel.

Friday, the hearing continues in Salem Superior Court. It is a hearing on a motion to suppress statements in the murder case of Philip Chism (hereinafter, the "Defendant"). The Defendant has been charged with the rape and murder of Danvers teacher Colleen Ritzer.

The hearing began last week and we began discussing the matter in terms of Constitutional Rights, Miranda and the making of statements to law enforcement while in custody.

The defendant is claiming that both he and his mother attempted to invoke is right to counsel and that, under the circumstances, law enforcement did not adhere to their duty to comply. As a result, the defense claims that any statements he made where in voluntary and so should not be able to be used by the Commonwealth at trial.

Last Friday, the Commonwealth began putting up it's police witnesses to testify about their interaction with the defendant and his mother. Basically, They allege that when the first officer came into contact with the defendant, that officer was merely interested in him because he had been reported missing. He claimed that he had no idea of the killing At that time. Shortly thereafter, another officer entered the scene. The Defendant apparently made statements indicating that he may have been involved in a theft. Between that statement and the fact that the defendant was acting oddly, the officers asked him to empty his pockets "for their own safety".

This led to the discovery of the bloody blade allegedly used in the murder.

These factors led to the Defendant being brought to one police station and then another. During this time, the defendant made various statements and, at some point, was read his Miranda rights. Police officers also reached out to the Defendant's mother in hopes to get her to help get a statement from the 14-year-old Defendant.

The hearing was continued as the mother was described as making various statements which caused even more suspicion to be cast on her son.

Attorney Sam's Take On "Custody"

“Hey, Sam, if the police did not read the Defendant his Miranda rights when they took him into custody, doesn’t the case get dismissed?”

No. This is a common misunderstanding. The Miranda rights only really come into play when a statement is made by a suspect. If the Commonwealth wants to use the statement at trial, then it has to show that the statement was not coerced by the police. Step one in that evaluation is whether the suspect was given his or her Miranda rights.

Depending on the case, though, the potential for suppression goes much further. For example, if a suspect makes a statement and the court determines that that statement was not voluntary, then anything that the statement leads to directly also has to be suppressed.

In the Defendant’s case, he ended up making a statement that his victim was in the woods. The police went to the woods and foundthe body. Let’s assume for the moment that the court finds that the police would not have inevitably found the body without the statement anyway. Then, most likely, the statement and discovery of the body would be suppressed. In this case, of course, it is more likely that the body would have been discovered, so the argument is a bit weaker. However, if the Defendant added that he has narcotics in his bedroom, and that statement is found to be involuntary, the statement and the drugs will likely be suppressed.

However, there is an important concept here which many people overlook. In order for the police to have to give Miranda rights and for the statements to be seen as involuntary, the suspect has to be in “custody”.

This is the issue whereat most of the battle in suppression hearings focus.

“What do you mean? If the police grab you, then you are in custody, right?”

Well, not to be Clinton-esqe, but it depends what you mean by “grab”.

As I mentioned above, this hearing will continue this coming Friday. Let’s use the descriptions made at the hearing to illustrate this point and how complicated it can be. We will continue the subject matter after said testimony.

In the meantime, you may want to check out the blog-posts in the below-listed links to review the testimony given last Friday.

You may remember Philip Chism (hereinafter, the “defendant”). He is the 15-year-old juvenile who has been charged as an adult with the rape and murder of 24-year-old Danvers High School teacher Colleen Ritzer in 2013.

Today, the Defendant’s case is on the calendar again at Salem Superior Court. The issue of the day is suppression. The court is holding a hearing on the motion as I write today’s blog.

The defense is seeking to suppress alleged inculpatory statements made by the Defendant to law enforcement. The Defendant’s attorney argues that the police coerced him into waiving his Miranda Rights and making detailed statements about the murder.

The grounds apparently include that police never properly read the Defendant the Rights and also continued to question him even after he had invoked his right to remain silent and his mother had asked for a lawyer.

Additionally, the Defendant’s motion contends police pressured the Defendant’s mother into helping them get a confession out of her son while he was handcuffed in a police interrogation room.

According to the Commonwealth, the Defendant followed Ms. Ritzer into the girl’s bathroom after school, raped her and ‘‘repeatedly asphyxiated her before or while assaulting her with a box cutter.’’

The prosecution also alleges that the Defendant then put her mutilated body in a recycling bin and dumped it in the woods after taking her cellphone, which he destroyed, and her wallet, which he used a credit card from to buy fast food and attend a movie at the mall later that day. according to prosecutors.

The Defendant has pleaded not guilty to those charges as well as to attempted murder and other charges stemming from an assault on a Department of Youth Services worker while in custody pending trial on the murder case.

Attorney Sam's Take On The Issue Of Making Statements To Law Enforcement

We have discussed statements made to law enforcement many times and from various vantage points.

For example, I have suggested that in most cases, when confronted by law enforcement, it is best not to attempt outfighting , outrunning or out-talking them. These are generally exercises in which a bad situation becomes worse.

Sometimes even deadly.

There are limits, however. If the officer is taking “pedigree” information, such as name or date of birth, you should answer. I hasten to add that you should not lie about these specifics. The truth will come out and, again, you will have made a bad situation worse.

But that is basically where it ends.

Questions about potential crimes you have committed are way beyond that and, again generally, it is best not to respond except to ask to talk to your attorney first.

Even the best of statements have a way of getting changed around a bit when they have to be committed to a police report.

You have the right to remain silent, as well as to confer with counsel and whatever you say will be used against you in court. If you think that sounds an awful lot like the Miranda Rights, you are correct. In essence that is what they are all about.

Still, after being told these warnings, some folks figure that their golden tongues will convince the police that they are as innocent as a newborn. Maybe they even are innocent.

It is still usually a bad idea to go it alone.

In any event, when a suspect is in custody, the police must advise him or her as to these Rights. It also has to be in a meaningful way. For example, I have had cases where the Rights are read, in English to a suspect who does not really speak English. The suspect did not really understand what the detective was talking about but smiled and simply nodded in agreement to all the questions.

Clearly, that is not good enough.

In the Defendant’s case, there are other issues involved. Not the least of these issues are the Defendant’s age and whether he actually requested a lawyer.

“Phase One” of Dzhokhar Tsarnaev, 21, hereinafter, the “Defendant” ‘s jury trial for, among other things, multiple murder continues in Boston’s Federal District Court. The Defendant is accused of carrying out bombings with his now-deceased brother near the finish line of the race on April 15, 2013. Three people were killed in the bombing. More than 260 others were injured. Also, the Defendant stands charged with the killing of an MIT police officer days after the bombings. His brother died in connection with that killing.

Our representatives desire to have the Defendant join with his brother. While some might have expected the matter to be tried in state court, it is being brought to trial in federal court.

The reason is fairly simple. Massachusetts’ state criminal justice system does not have a death penalty. The federal criminal justice system does.

Since the government has announced that it is seeking the death penalty should the Defendant be convicted, the Defendant’s lawyers and federal prosecutors spend days reviewing more than 37,800 pages of juror questionnaires before individual questioning begins on January 15th. Twelve jurors and six alternates will be chosen over three weeks. Then, it is expected that “Phase One” starts with a flourish. The judge told prospective jurors that he expects the trial to begin with opening statements on January 26th.

Attorney Sam’s Take On The Jury Selection Procedure

The procedure of jury selection differs between jurisdictions and types of crimes. However, while some of the specifics differ, the basic process and importance remains the same.

After all, it is the jury which will decide the facts in the case in a jury trial. In a criminal case, the jury must be unanimous in order to reach a verdict. Otherwise, there is a “hung jury”. The unfortunate name merely means that the jurors were unable to unanimously agree whether a defendant has been proven to be guilty beyond a reasonable doubt.

In the case of a hung jury, the parties will have to decide whether they can come to an agreed upon result or else the case goes to trial again.

Basically, the same status quo as before the trial.

“What is the general procedure? Why is it going to take so long? The jury selection in my state case took less than an hour!”

Yes, but this case is different in many respects.

Jury selection in Massachusetts state courts is a fairly quack, particularly in district court cases which are non-sex-oriented. Presently, the judge asks the jury panel some general questions, as well as, perhaps, some questions the attorneys submit to the court, and then the attorneys pick the jury. Each side gets a small number of “pre-emptory challenges”. Such challenges mean simply that the party does not want a particular prospective juror without having to say why.

There are generally very few of these per party.

Challenges to jurors can also be done for “cause”. These types of charges, which are unlimited, basically submit to the court that there is no question but that the potential juror cannot be fair and impartial.

These have to be argued and are usually hard to get.

Since there are so few potential challenges, the process goes pretty fast. It is a process of elimination…not, as many assume a process of picking your favorite potential jurors.

In more serious cases, each side gets more pre-emptories. In federal court, the number of pre-emptories differs from the number in state court.

Next, you have the jurors who either cannot or do not want to serve for the trial. When it comes time for the judge if there is any “other” reason they cannot serve, there is often a long line of potential jurors ready to come up and plead their case as to why they should not serve.

Again, the longer the line, the longer the time.

In the Defendant’s case, it is a high profile and very emotional case. Regardless of how many pre-emptor challenges there are, you may be sure that there will be many challenges for cause and, particularly given the amount of time involved, many jurors looking for the proverbial exit.

The selection will be further complicated because the jury may be called upon to serve during “Phase Two”, the penalty phase.

That will be the phase in which, if there is a conviction, whether the penalty should be prison or death.

There are a number of potential jurors who will clearly have to be excluded from serving. First, as Professor Ira Robbins of American University’s College of Law points out, are those who are categorically opposed to the death penalty. These folks would not be able to fairly serve in “Phase Two” and, if it would influence their decision regarding guilt, “Phase One”. One would imagine that any potential jurors who lost loved ones or saw loved ones injured at the bombing would be excused. Further, because the court has refused to move the case, there may be many folks who were actually present during ether the bombing or the aftermath.

Potential witnesses really cannot be considered fair and impartial jurors.

One final complication. An issue for appeal in the case already exists as to whether the Defendant can receive a fair and impartial trial in Boston. The court will likely be very sensitive to this issue during jury selection. After all, if there is a conviction, which many expect, whether the jury was truly impartial could be an issue which overturns such a conviction.

Then we may get to go through this whole thing again!

As mentioned in my last blog. Kinda makes you wonder if it wouldn’t have been worth moving the trial if not simply to avoid that issue…!

But, then, I am sure that those dressed in black robes are much more knowledgeable and intelligent than I.

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.